1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARCUS A. ROBERTS, et al., Case No. 15-cv-03418-EMC
8 Plaintiffs, ORDER GRANTING PLAINTIFFS’ (1) MOTION FOR FINAL APPROVAL 9 v. OF CLASS SETTLEMENT, AND (2) MOTION FOR AWARD OF 10 AT&T MOBILITY LLC, ATTORNEYS’ FEES AND EXPENSES 11 Defendant. Docket Nos. 208-209
12 13 14 This matter came before the Court for hearing on August 19, 2021, pursuant to the Court’s 15 Preliminary Approval Order dated March 31, 2021 (Docket No. 205), and on the motion 16 (“Motion”; Docket No. 208) for final approval of the Amended Class Settlement Agreement, 17 dated March 31, 2021, entered into by the Parties (the “Settlement Agreement”; Docket No. 204- 18 1), as well as Settlement Class Counsel’s motion for an award of attorneys’ fees, costs, and service 19 awards (Docket No. 209). In view of the favorable response of the class (zero objections , only 35 20 opt outs, and a nearly 12% claims rate by Group B) following adequate class notice, and for the 21 reasons stated at the hearing and in its preliminary approval of the settlement, the Court hereby 22 ORDERS as follows: 23 1. Capitalized terms not otherwise defined herein have the meanings set forth in the 24 Settlement Agreement. 25 2. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 26 1332(d), and has personal jurisdiction over the Parties and the Settlement Class Members. Venue 27 is proper in this District. 1 All consumers residing in California (based on the accountholder’s last known billing address) who purchased an unlimited data plan 2 from AT&T Mobility LLC and who, on or before March 31, 2021, exceeded AT&T’s applicable data usage threshold for any user on 3 the account for one or more monthly billing cycles such that the user would have been eligible for data usage slowing or deprioritization 4 by AT&T in those billing cycles under AT&T’s network management policies. 5 Excluded from the Settlement Class are any Judge presiding over 6 this Action, any members of their families, and AT&T and affiliated entities and their respective officers and directors. Also excluded 7 from the Settlement Class are those persons who submitted a timely and valid request for exclusion in accordance with the procedures 8 set forth in the Settlement Agreement and in this Court’s Preliminary Approval Order. 9 10 4. The Court finds that the notice provisions set forth under the Class Action Fairness 11 Act, 28 U.S.C. § 1715, were complied with in this matter. 12 5. The Court finds that the Notice program for disseminating notice to the Settlement 13 Class, provided for in the Settlement Agreement and previously approved and directed by the 14 Court, has been implemented by the Settlement Administrator and the Parties. The Court finds 15 that such Notice program, including the approved forms of notice: (a) constituted the best notice 16 that is practicable under the circumstances; (b) included direct individual notice to all Settlement 17 Class Members who could be identified through reasonable effort, as well as supplemental notice 18 via a social media notice campaign and reminder email and SMS notices; (c) constituted notice 19 that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of 20 the nature of this Action, the definition of the Settlement Class certified, the class claims and 21 issues, the opportunity to enter an appearance through an attorney if the member so desires; the 22 opportunity, the time, and manner for requesting exclusion from the Settlement Class, and the 23 binding effect of a class judgment; (d) constituted due, adequate and sufficient notice to all 24 persons entitled to notice; and (e) met all applicable requirements of Federal Rule of Civil 25 Procedure 23, Due Process under the U.S. Constitution, and any other applicable law. 26 6. The Court hereby finds that all persons who fall within the definition of the 27 Settlement Class have been adequately provided with an opportunity to exclude themselves from 1 Settlement Agreement and this Court’s Preliminary Approval Order. All persons who submitted 2 timely and valid requests for exclusion are not bound by this Final Order and Judgment. A list of 3 those persons who submitted timely and valid requests for exclusion is attached as Exhibit A to 4 the Supplemental Declaration of Steven Platt, filed in this case at Docket No. 210-1. All other 5 persons who fall within the definition of the Settlement Class are Settlement Class Members and 6 part of the Settlement Class, and shall be bound by this Final Order and Judgment and the 7 Settlement Agreement. 8 7. The Court reaffirms that this Action is properly maintained as a class action, for 9 settlement purposes only, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). The Court reaffirms its 10 findings that, for settlement purposes only, the Settlement Class, as defined above, meets the 11 requirements for class certification under Fed. R. Civ. P. 23(a) and 23(b)(3)—namely, that (1) the 12 Settlement Class Members are sufficiently numerous such that joinder is impracticable; (2) there 13 are common questions of law and fact; (3) Plaintiffs’ claims are typical of those of the Settlement 14 Class Members; (4) Plaintiffs and Settlement Class Counsel have adequately represented, and will 15 continue to adequately represent, the interests of the Settlement Class Members; and (5) for 16 purposes of settlement, the Settlement Class meets the predominance and superiority requirements 17 of Fed. R. Civ. P. 23(b)(3). 18 8. The Court reaffirms its appointment of Plaintiffs Marcus Roberts, Kenneth 19 Chewey, and Ashley Chewey as Settlement Class Representatives to represent the Settlement 20 Class, and reaffirms its appointment of Settlement Class Counsel to represent the Settlement 21 Class. 22 9. The Court finds that the Settlement Agreement warrants final approval pursuant to 23 Fed. R. Civ. P. 23(e)(2) because, the Court finds, the Settlement Agreement is fair, reasonable, and 24 adequate and is in the best interest of the Settlement Class, after weighing the relevant 25 considerations. First, the Court finds that Plaintiffs and Settlement Class Counsel have adequately 26 represented the Settlement Class, and will continue to do so through settlement implementation. 27 Second, the proposed Settlement Agreement was reached as a result of arms-length negotiations 1 litigation, investigation, and discovery. Third, the Court finds that the relief proposed to be 2 provided for the Settlement Class is fair, reasonable, and adequate, taking into account, inter alia: 3 (i) the costs, risks, and delay of trial and appeal; (ii) the harm to the Settlement Class Members; 4 (iii) the effectiveness of the proposed method of distributing relief to the Settlement Class (via 5 direct account credits and mailed checks); and (iv) the terms of the requested award of attorneys’ 6 fees and costs. Fourth, the Court finds that the Settlement Agreement treats Settlement Class 7 Members equitably relative to each other, and that the proposed allocation of settlement funds to 8 Settlement Class Members is reasonable and equitable.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARCUS A. ROBERTS, et al., Case No. 15-cv-03418-EMC
8 Plaintiffs, ORDER GRANTING PLAINTIFFS’ (1) MOTION FOR FINAL APPROVAL 9 v. OF CLASS SETTLEMENT, AND (2) MOTION FOR AWARD OF 10 AT&T MOBILITY LLC, ATTORNEYS’ FEES AND EXPENSES 11 Defendant. Docket Nos. 208-209
12 13 14 This matter came before the Court for hearing on August 19, 2021, pursuant to the Court’s 15 Preliminary Approval Order dated March 31, 2021 (Docket No. 205), and on the motion 16 (“Motion”; Docket No. 208) for final approval of the Amended Class Settlement Agreement, 17 dated March 31, 2021, entered into by the Parties (the “Settlement Agreement”; Docket No. 204- 18 1), as well as Settlement Class Counsel’s motion for an award of attorneys’ fees, costs, and service 19 awards (Docket No. 209). In view of the favorable response of the class (zero objections , only 35 20 opt outs, and a nearly 12% claims rate by Group B) following adequate class notice, and for the 21 reasons stated at the hearing and in its preliminary approval of the settlement, the Court hereby 22 ORDERS as follows: 23 1. Capitalized terms not otherwise defined herein have the meanings set forth in the 24 Settlement Agreement. 25 2. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 26 1332(d), and has personal jurisdiction over the Parties and the Settlement Class Members. Venue 27 is proper in this District. 1 All consumers residing in California (based on the accountholder’s last known billing address) who purchased an unlimited data plan 2 from AT&T Mobility LLC and who, on or before March 31, 2021, exceeded AT&T’s applicable data usage threshold for any user on 3 the account for one or more monthly billing cycles such that the user would have been eligible for data usage slowing or deprioritization 4 by AT&T in those billing cycles under AT&T’s network management policies. 5 Excluded from the Settlement Class are any Judge presiding over 6 this Action, any members of their families, and AT&T and affiliated entities and their respective officers and directors. Also excluded 7 from the Settlement Class are those persons who submitted a timely and valid request for exclusion in accordance with the procedures 8 set forth in the Settlement Agreement and in this Court’s Preliminary Approval Order. 9 10 4. The Court finds that the notice provisions set forth under the Class Action Fairness 11 Act, 28 U.S.C. § 1715, were complied with in this matter. 12 5. The Court finds that the Notice program for disseminating notice to the Settlement 13 Class, provided for in the Settlement Agreement and previously approved and directed by the 14 Court, has been implemented by the Settlement Administrator and the Parties. The Court finds 15 that such Notice program, including the approved forms of notice: (a) constituted the best notice 16 that is practicable under the circumstances; (b) included direct individual notice to all Settlement 17 Class Members who could be identified through reasonable effort, as well as supplemental notice 18 via a social media notice campaign and reminder email and SMS notices; (c) constituted notice 19 that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of 20 the nature of this Action, the definition of the Settlement Class certified, the class claims and 21 issues, the opportunity to enter an appearance through an attorney if the member so desires; the 22 opportunity, the time, and manner for requesting exclusion from the Settlement Class, and the 23 binding effect of a class judgment; (d) constituted due, adequate and sufficient notice to all 24 persons entitled to notice; and (e) met all applicable requirements of Federal Rule of Civil 25 Procedure 23, Due Process under the U.S. Constitution, and any other applicable law. 26 6. The Court hereby finds that all persons who fall within the definition of the 27 Settlement Class have been adequately provided with an opportunity to exclude themselves from 1 Settlement Agreement and this Court’s Preliminary Approval Order. All persons who submitted 2 timely and valid requests for exclusion are not bound by this Final Order and Judgment. A list of 3 those persons who submitted timely and valid requests for exclusion is attached as Exhibit A to 4 the Supplemental Declaration of Steven Platt, filed in this case at Docket No. 210-1. All other 5 persons who fall within the definition of the Settlement Class are Settlement Class Members and 6 part of the Settlement Class, and shall be bound by this Final Order and Judgment and the 7 Settlement Agreement. 8 7. The Court reaffirms that this Action is properly maintained as a class action, for 9 settlement purposes only, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). The Court reaffirms its 10 findings that, for settlement purposes only, the Settlement Class, as defined above, meets the 11 requirements for class certification under Fed. R. Civ. P. 23(a) and 23(b)(3)—namely, that (1) the 12 Settlement Class Members are sufficiently numerous such that joinder is impracticable; (2) there 13 are common questions of law and fact; (3) Plaintiffs’ claims are typical of those of the Settlement 14 Class Members; (4) Plaintiffs and Settlement Class Counsel have adequately represented, and will 15 continue to adequately represent, the interests of the Settlement Class Members; and (5) for 16 purposes of settlement, the Settlement Class meets the predominance and superiority requirements 17 of Fed. R. Civ. P. 23(b)(3). 18 8. The Court reaffirms its appointment of Plaintiffs Marcus Roberts, Kenneth 19 Chewey, and Ashley Chewey as Settlement Class Representatives to represent the Settlement 20 Class, and reaffirms its appointment of Settlement Class Counsel to represent the Settlement 21 Class. 22 9. The Court finds that the Settlement Agreement warrants final approval pursuant to 23 Fed. R. Civ. P. 23(e)(2) because, the Court finds, the Settlement Agreement is fair, reasonable, and 24 adequate and is in the best interest of the Settlement Class, after weighing the relevant 25 considerations. First, the Court finds that Plaintiffs and Settlement Class Counsel have adequately 26 represented the Settlement Class, and will continue to do so through settlement implementation. 27 Second, the proposed Settlement Agreement was reached as a result of arms-length negotiations 1 litigation, investigation, and discovery. Third, the Court finds that the relief proposed to be 2 provided for the Settlement Class is fair, reasonable, and adequate, taking into account, inter alia: 3 (i) the costs, risks, and delay of trial and appeal; (ii) the harm to the Settlement Class Members; 4 (iii) the effectiveness of the proposed method of distributing relief to the Settlement Class (via 5 direct account credits and mailed checks); and (iv) the terms of the requested award of attorneys’ 6 fees and costs. Fourth, the Court finds that the Settlement Agreement treats Settlement Class 7 Members equitably relative to each other, and that the proposed allocation of settlement funds to 8 Settlement Class Members is reasonable and equitable. Under the terms of the Settlement 9 Agreement, all Settlement Class Members subject to throttling prior to AT&T’s adoption of 10 congestion aware throttling will be issued payments without the need to submit a claim, and all 11 Settlement Class Members who exceeded AT&T’s data usage threshold after AT&T’s adoption of 12 congestion aware throttling were eligible to submit a claim for a payment (via a simple claim form 13 attesting to their belief that they were subject to data speed slowing at least once during that time 14 period). Settlement Class Members who are in both groups are eligible for both payments. The 15 settlement payment amounts for the two groups will be at a ratio of 3:4 (Group A:Group B). The 16 Court finds that the payment allocation provided in the Settlement Agreement, including the 17 Claims Process for Group B Accounts (which has been implemented by the Settlement 18 Administrator pursuant to the Preliminary Approval Order), the individual payment amounts, and 19 the aggregate payment amounts for Groups A and B, are reasonable and equitable given, inter 20 alia, AT&T’s records for the period after it adopted congestion aware throttling show which 21 customers exceeded its data usage threshold but do not indicate which customers actually 22 experienced reduced data speeds or for how long; the throttling that occurred prior to AT&T’s 23 adoption of congestion aware throttling was for the remainder of the billing cycle after the data 24 usage threshold was exceeded, whereas the deprioritization that occurred following AT&T’s 25 adoption of congestion aware throttling (which also only occurred, if at all, after the data usage 26 threshold exceeded for the billing cycle) occurred only during periods of actual congestion at 27 congested sites; and Settlement Class Members who were subject to throttling prior to AT&T’s 1 throttling via a consent judgment in the related case, Federal Trade Commission v. AT&T Mobility 2 LLC, N.D. Cal. Case No. 14-cv-04785-EMC.1 3 10. In granting final approval of the Settlement Agreement, the Court has also 4 considered the factors that courts in this Circuit consider in evaluating proposed class settlements, 5 which overlap considerably with the factors to be considered under Fed. R. Civ. P. 23(e)(2). See 6 Churchill Village LLC v. General Electric Corp., 361 F.3d 566, 575 (9th Cir. 2004). The Court 7 finds that those factors—including the strength of the plaintiffs’ case; the risk, expense, 8 complexity, and likely duration of further litigation; the risk of maintaining class action status 9 throughout the trial; the amount offered in settlement; the extensive discovery that was conducted 10 and the stage of the litigation when the settlement was reached; the experience and views of 11 counsel; and the lack of any objections by any governmental participant following the 12 dissemination of notice under 28 U.S.C. § 1715—support granting final approval of the 13 Settlement. 14 11. The Court further finds that the very positive reaction of the Settlement Class 15 Members to the Settlement Agreement supports granting final approval of the Settlement 16 Agreement. Following direct notice to the Settlement Class Members, there were zero objections 17 submitted and only 35 persons requested to be excluded from the Settlement Class, while more 18 than 144,000 claims for Group B payments have been submitted. 19 12. The Motion is hereby GRANTED, and the Settlement Agreement and its terms are 20 hereby found to be and APPROVED as fair, reasonable, and adequate and in the best interest of 21 the Settlement Class. The Parties and Settlement Administrator are directed to consummate and 22 implement the Settlement Agreement in accordance with its terms, including distributing 23 settlement payments to the Settlement Class Members and other disbursements from the 24 Settlement Consideration as provided by the Settlement Agreement. 25
26 1 The FTC action payment amount for most customers was approximately $12.00, while a smaller portion received approximately $31.00. See FTC Action Docket No. 192 at 4-5, Docket No. 202. 27 The FTC action only addressed throttling prior to AT&T’s adoption of congestion aware 1 13. This Action is hereby dismissed with prejudice and without costs to any Party, 2 other than as specified in the Settlement Agreement, this Final Order and Judgment, and any 3 order(s) by this Court regarding Settlement Class Counsel’s motion for attorneys’ fees, costs, and 4 service awards. 5 14. In consideration of the benefits provided under the Settlement Agreement, and for 6 other good and valuable consideration set forth in the Settlement Agreement, each of the 7 Settlement Class Members and Releasing Parties shall, by operation of this Final Order and 8 Judgment, have fully, finally, and forever released, relinquished, acquitted, and discharged all 9 Released Claims against all Released Parties in accordance with Section IX of the Settlement 10 Agreement, the terms of which section are incorporated herein by reference. The terms of the 11 Settlement Agreement, which are incorporated by reference into this Order, shall have res judicata 12 and other preclusive effects as to the Released Claims against the Released Parties. The Released 13 Parties may file the Settlement Agreement and/or this Order in any other litigation to support a 14 defense or counterclaim based on principles of res judicata, collateral estoppel, release, good-faith 15 settlement, judgment bar or reduction, or any similar defense or counterclaim. 16 15. All Settlement Class Members and Releasing Parties have covenanted not to sue 17 any Released Party with respect to any Released Claim and shall be permanently barred and 18 enjoined from instituting, commencing, prosecuting, continuing, or asserting any Released Claim 19 against any Released Party. This permanent bar and injunction are necessary to protect and 20 effectuate the Settlement Agreement and this Order, and this Court’s authority to effectuate the 21 Settlement, and are ordered in aid of this Court’s jurisdiction and to protect its judgments. 22 Notwithstanding the foregoing, nothing in this Order and Judgment shall preclude an action to 23 enforce the terms of the Settlement Agreement. 24 16. Pursuant to the terms of the Settlement Agreement, Plaintiffs, Settlement Class 25 Counsel, AT&T, and AT&T’s Counsel have, and shall be deemed to have, released each other 26 from any and all claims relating in any way to any Party or counsel’s conduct in this Action, 27 including but not limited to any claims of abuse of process, malicious prosecution, or any other 1 claims for attorneys’ fees, costs of suit, or sanctions of any kind except as otherwise expressly set 2 forth in the Settlement Agreement. 3 17. This Final Judgment and Order is the final, appealable judgment in the Action as to 4 all Released Claims. 5 18. Without affecting the finality of this Final Order and Judgment in any way, this 6 Court retains jurisdiction over (a) implementation of the Settlement Agreement and the terms of 7 the Settlement Agreement; (b) Settlement Class Counsel’s motion for attorneys’ fees, costs, and 8 service awards; (c) distribution of the settlement consideration, Settlement Class Counsel 9 attorneys’ fees and expenses, and any Plaintiff service awards; and (d) all other proceedings 10 related to the implementation, interpretation, validity, administration, consummation, and 11 enforcement of the terms of the Settlement Agreement. The time to appeal from this Final Order 12 and Judgment shall commence upon its entry. 13 19. In the event that the Settlement Agreement Effective Date does not occur, this Final 14 Order and Judgment shall be rendered null and void and shall be vacated, nunc pro tunc, except 15 insofar as expressly provided to the contrary in the Settlement Agreement, and without prejudice 16 to the status quo ante rights of Plaintiffs, Settlement Class Members, and AT&T. 17 20. This Final Order and Judgment, the Preliminary Approval Order, the Settlement 18 Agreement, and all negotiations, statements, agreements, and proceedings relating to the 19 Settlement Agreement, and any matters arising in connection with settlement negotiations, 20 proceedings, or agreements shall not constitute, be described as, construed as, offered or received 21 against AT&T or the other Released Parties as evidence or an admission of: (a) the truth of any 22 fact alleged by Plaintiffs in the Action; (b) any liability, negligence, fault, or wrongdoing of 23 AT&T or the Released Parties; or (c) that this Action or any other action may be properly certified 24 as a class action for litigation, non-settlement purposes. 25 21. The Court has also considered Plaintiffs’ and Settlement Class Counsel’s motion 26 for attorneys’ fees, expenses, and service awards (Docket No. 209; “Fees and Costs Motion”). 27 The Court finds that the amounts requested therein are reasonable and appropriate under 1 applicable standards and the circumstances of this Action, and hereby GRANTS the Fees and 2 Costs Motion. 3 22. The Court awards Settlement Class Counsel attorneys’ fees in the amount of 4 $2,932,333.98, which is approximately 24.44% of the $12,000,000 common Settlement Fund 5 achieved in this case. That is slightly lower than the “benchmark” of 25% for percentage-of-the- 6 fund fee awards in this Circuit. The Court finds that such fee is justified by the circumstances of 7 this case and applicable standards. A lodestar “cross-check” further supports the reasonableness 8 of the requested fee amount. The Court finds that the hours reflected in Settlement Class 9 Counsel’s submitted lodestar of $3,048,158.25 (as of May 2021) are reasonable under the 10 circumstances of this case and that the hourly rates used in calculating such lodestar are reasonable 11 and within the range of rates for attorneys of comparable experience and qualifications in this 12 District. The fee requested represents a “negative” multiplier of approximately 0.962 (based on 13 Settlement Class Counsel’s lodestar as of May 2021), which the Court finds to be reasonable 14 under the circumstances of this case. 15 23. The Court also awards Settlement Class Counsel reimbursement of litigation 16 expenses in the requested amount of $67,666.02. The Court finds that these expenditures were 17 reasonably incurred in the prosecution and resolution of this case, are reasonable in amount, and 18 should be reimbursed. 19 24. The Court also awards the Class Representatives service awards of $2,500 each, to 20 compensate them for their efforts and commitment on behalf of the Settlement Class. The Court 21 finds that such awards are within the range awarded in this District and are well justified by the 22 circumstances of this case. 23 25. All attorneys’ fees, expenses, and service awards awarded herein shall be paid from 24 the common Settlement Fund, pursuant to the terms of the Settlement Agreement. 25 /// 26 /// 27 /// 1 26. Pursuant to Fed. R. Civ. P. 54, the Court finds that there is no just reason for delay 2 and expressly directs this Final Order and Judgment and immediate entry by the Clerk of the 3 Court. 4 5 IT IS SO ORDERED. 6 7 Dated: August 20, 2021 8 9 ______________________________________ EDWARD M. CHEN 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27